Monday, February 01, 2016

A Contrarian View of the Planned Parenthood Reverse-Indictment

by Michael Dorf
Last week's news that a Houston grand jury had cleared Planned Parenthood of any wrongdoing and had instead indicted anti-abortion activists David Daleiden and Sandra Merritt was generally greeted with the kind of joy that only schadenfreude can bring. For example, in a gleeful Daily Show segment, Trevor Noah compared the "twist ending" to the grand jury deliberations to a Hollywood movie in which the seemingly invincible villain is satisfyingly brought down at the last moment. Although I am also pleased that Planned Parenthood was not indicted, I take a dimmer view of the indictment of Daleiden and Merritt.

If you watch the Daily Show segment linked above closely, you will see that (at the 4:12 mark) it briefly borrows some footage from a CBS Evening News segment on the indictments. The full version of that CBS News segment in turn includes a few seconds of me talking (beginning at the 0:54 mark and again at the 1:36 mark), in which I warn that the prosecution of Daleiden and Merritt could chill legitimate journalism and other undercover investigations on matters of public interest. The CBS producers of the segment connected the prosecution of the makers of the Planned Parenthood videos to a chilling effect on environmental and animal rights activists--a linkage I have also drawn in the past (e.g., here).

After I appeared on the CBS News segment, I received some polite and some not-so-polite inquiries from people who wanted to know more about my view. Some of the questioners simply assumed--falsely---that I was expressing sympathy for the anti-abortion/anti-Planned Parenthood goals of Daleiden and Merritt. But others thought that I was missing an important distinction. Journalists aren't supposed to break the law in conducting their investigations, they said. I know that's true under existing law, but as Sherry Colb and I now explain in an op-ed on CNN.com, perhaps journalists need special protection so that, in some circumstances, they should be licensed to violate the law.

As our op-ed acknowledges, granting journalists exemptions from general laws would require resolving some difficult questions, most prominently: who is a journalist? As we note, Daleiden and Merritt do not work for any news organization. Nor do most of the environmental, animal-rights, and other activists who wish to go undercover to bring public attention to activities conducted in secrecy. Does anybody who wants to go undercover get to take advantage of the exemption we favor for journalists?

That's a hard question, but it's not an entirely novel one. The question of who counts as "the press" has arisen under state laws that permit reporters to shield their sources. Most state laws (e.g., California and New York) only grant the privilege to persons working for or otherwise connected with more or less conventional media. However, these laws generally pre-date the internet, while some of the more recently amended or enacted state laws (e.g., Connecticut) include a catch-all that is broad enough to cover at least the publishing, broadcasting, or internet news arm of an activist organization. Given that there is no general obligation on journalists to be "objective", the fact that the news webpage for a pro-life, workers' rights, animal rights, or other activist-oriented organization has a perspective shouldn't distinguish it from, say, FoxNews. I'm not saying that courts necessarily would or should apply an exemption from general laws regarding undercover operations exactly the same way that they apply reporter-source privilege laws, but the basic problem of "who is a journalist?" is at least familiar.

Another line of questions from viewers and readers asked whether a privilege for undercover reporting is needed. After all, journalists don't have one now, and yet they seem to do all right. Perhaps so, but the objection relies on the dubious empirical assumption that journalists (and activists) are currently uncovering all of the important secret information that is important for the public to know without breaking any laws in order to go undercover.

In any event, the need question could be addressed by a carefully limited privilege. In order to escape criminal liability under a general law, a journalist (or activist) could be required to show: (a) that the information was of genuine public interest; (b) that breaking the law was necessary to obtain it; and (c) that the public interest in the information outweighs the interest in enforcing the particular law. The foregoing is not meant to serve as anything like a model statute, but it does at least suggest one approach that could be adopted by a state legislature or by a court as a common-law defense.

A narrower approach--which I endorsed as a construction of the First Amendment in a prior post--would be to permit journalists and activists to escape criminal liability only where they were singled out for prosecution because of hostility to the content of their speech or reporting. But I take that proposition to be the law under the federal First Amendment already. And while it might, in principle, provide sufficient protection for journalists and activists operating undercover, in practice it would be under-protective because of the difficulty of proving illicit motive.

Finally, I want to be as clear as possible that nothing I've said here, in the CBS News segment, or in the CNN op-ed endorses the proposition that Daleiden and Merritt would escape criminal liability under a properly drafted and limited statutory or common-law exemption for undercover investigation. I am only saying that their case presents a question of broader significance.

11 comments:

It is possible to have a great deal of sympathy with Mr. Dorf and Ms. Colb’s position here and yet in the end disagree with their conclusion that exceptions should be made for journalists with respect to legal activity. All of us understand that in part their position arises from their sincere and legitimate concern for animal welfare and that powerful interests have enacted laws whose main purpose is to hide the practice of animal slaughter from the public. Allowing journalists the freedom to violate these laws with impunity may be the only way to expose these practices to a public that would recoil in horror at them.

But in the end, as Mr. Dorf’s post illustrates, the difficulty of allowing exemptions for journalists means such a systgem just does not work, and the principal that one class of citizens are exempt from some laws just does not fit within the judicial framework of this nation. A better path might be that of civil disobedience as practiced by those who fought for civil rights. They did not ask for exemption from the law and accepted that fines and even jail sentences were a price that had to be paid to bring about a greater good. Yes, I realize this is a lot to ask of those and it is easy for people like myself to ask it since we are not the ones who will be facing prosecution. But asking that they be exempt from legal prosecution is an even greater burden and highly dangerous to civil society..

I'm sympathetic to both sides here but think such things at least should be a matter of prosecutorial discretion. There is no federal immunity of the press testifying (last I checked, laws protected it to some degree -- qualifier -- in 49 states) but there is a policy in place requiring various things to take place for the press to be liable in that context. The same should motivate local prosecution choices.

In that respect, the indictment involving trying to buy body parts to me seems problematic, since it was an investigation to deal with just that. What was done with the results of the investigation is worthy of a lot of criticism and the people involved might be liable for various civil wrongs. But, especially given it is merely a misdemeanor, indicting them for that to me is wrong.

Plus, given what they claimed happened, the indictment is just too ironic. And, open for them to act like marytrs and use it to smear PP some more ("THEY are the real criminals! they actually DO this etc.") This makes me wary for PP to be happy about this indictment though just labeling them as criminals is useful.

The other matter involved altering a public record -- some of the news coverage was confusing, but I believe the issue is that they doctored driver licenses (more than one person is involved, right?). This is different for me -- I'm not sure where there was really a compelling need to do that for this investigation (I know the term will bother some, who just see them as assholes). I can hypothesize some sort of investigation where a fake id of some sort was necessary, but doctoring a driver's license here did not seem necessary. It also is a lot more open to abuse and a concern for public safety etc. than the other crime.

As to the first comment, this would factor in with civil disobedience too. Every technical violation of trespass rules, e.g., to hang a sign on a government building etc. should not be prosecuted especially if they get a warning first and don't keep on committing crimes. Also, small fines or community service, not what often are serious consequences for prosecutions, should usually be the most given.

Good thoughtful comments. Thanks. One quick thought in response to DR's suggestion of civil disobedience as an alternative. That is essentially the regime we now have in place for reporters who wish to shield sources as against federal subpoenas. They go to jail. The institutional press has long sought a federal shield law, believing that civil disobedience is inadequate.

As a geezer lawyer in semi-retirement, I get to watch The Rockford Files re-runs on TV. My favorite episodes involved our hero required to testify before a Grand Jury. The closing segment of Jim's speech to the Grand Jury room followed by a closing written statement discussing how a Grand Jury functions were very informative, including to me, as I never in a long career got involved in a Grand Jury proceeding, which limits the role of an attorney of a client appearing before such a tribunal. [Google The Rockford Files + Grand Jury episodes for links.]

I became aware early on of the potential political aspects of a Grand Jury here in the Boston area. Of course, we can agree that indicting a ham sandwich is not Kosher. But this adage expresses the political power of a Grand Jury. Of course I cannot read the minds of the prosecutors calling this Grand Jury in Houston, although I am aware from media accounts of the underlying (and lying) issues. Regarding the so called "Twist," it isn't clear to me whether this came about at the suggestion of the prosecutors or whether the Grand Jury members were so appalled that in good conscience they felt obliged to indict the anti-abortion activists. If the latter, then I doff my hat to them with a "Well done."

Mike conjoins journalists and activists. But let's focus on the journalist. First, is there a protection offered to the journalist by the press clause of the 1st A? I assume the journalist has the same speech clause protection activists and others have. [I am aware of course of Sullivan v. NYTimes.} A journalist can and often is a self-description. With the Internet, some claim we are all journalists now. There is no license required to be a journalist nor any special education. Requiring licensing would most likely violate the 1st A. So perhaps we need a definition of a journalist. As noted by Mike, this is no simple matter in this day and age. So where does the press clause of the 1st A come in to protect one who claims to be a journalist? I have read a few law review articles on the subject and opinions are split as to whether additional protection is provided by the press clause beyond the speech clause for a journalist. We know certain "speech" may not have the protections of the 1st A, like defamation (subject to Sullivan v. NYTimes).

We cannot get into the minds of the members of the Grand Jury that readily, and we may be limited in attempts to do so. The indictments were not of a ham sandwich but a ham-handed effort to distort, in the nature of defamation. Was there evidence of malice? The project had a sense of malice from the beginning with the methods used, including editing, to put PP in a bad light. But why not let this play out? Will the indictments stifle good journalism/activism? Was a public or private (political) good involved with this documentary? Were constitutional rights of those indicted violated? A trial will afford them as much protection as trials afford to other well-funded defendants.

By the way, in the context of this post, Mike, consider the 60 Minutes Report yesterday on secret filming of NY attorneys on potentially disguising the sources of certain monies in a sting addressing potential laundering of illegal funds. Did that deliver a public service? Was it the only reasonable way to address the scrubbing of foreign monies in America?

Boy, I would enjoy a ham sandwich on dark rye with a thin layer of hot mustard and a half-sour, with a Dr. Brown Cream Soda.

"The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not."

Justice Stewart dissented and was among those who wished to give special discretion to the "press," but ultimately "news gathering" or some such has been deemed the key here. And, no special rights given to the press specifically, including regarding things like searching news rooms. NYT v. Sullivan after all turned on an advertisement with the parties to the ad, not the press itself pretty important. The "lone pamphleteer" has been protected here too. Some, like Prof. Eugene Volokh argue this is "originalist," that "press" meant the actual machine, not the institution. Who knows there.

Certain states perhaps handle things differently under their own constitutions, but institutions probably cannot be completely the limit in the 1A. See also, how individual beliefs of a religious nature are protected. Like there, perhaps being a member of a press organization makes things easier in certain cases.

In your CNN article you commented on the serious lacks of protection for whistle blowers and suggested that some form of violating laws to "go under cover" might be the good avenue available to the press for accessing hidden wrong doing (I hope that's a fair characterization of the idea). I suggest that the press has a powerful alternative strategy in simply educating the public on the value of whistle blower protections and even advocating for them as a true universal freedom which would support the effectiveness of a free press. I'm a little suspicious of a line of thinking that requires exemption from laws for a particular set of people in order to maintain "everyone's" freedom.

That said, I think that you are wise to ask us to question our - my - quick reaction favoring the indictment. If this was essentially an attack on the film makers because of their press activity (a selective prosecution) we need to question it. I want to examine the context as thoroughly as we can, rather than cheer for our team and lose another component of the messy general structure of civil debate.

I suspect that your support for a legal exemption is not the best approach although I don't have a strong alternative to offer. Maximum strength whistle blower protection? Increased social support for civil disobedients, even of those we disagree with?

I find it problematic to license anyone to violate the law, whether journalists or law enforcement. I cite law enforcement, because trickery is integral to that work without any kind of special authorization (whether falsely telling a suspect they have a witness or pretending to be a criminal in order to catch criminals). I think the same rules should apply to all regarding the use of trickery. "Journalists" should certainly have no greater rights than anyone else. Basic concepts of fairness and equal protection should weight against that.

I would draw a line at the use of fake government issued identification or actually providing illegal materials. Law enforcement does get certain special privileges necessitated by its unique position (eg it may ignore traffic laws under certain circumstances, it may remain in possession of illegal items), but a general privilege to break the law should not be tolerated. I certainly don't want journalists to ignore traffic laws because a story is really important.